Vol.1 No.1 October2015
Agamben on the Normalcy of Anomie: The Post-Marcos Dictatorship
Joharel Escobia. M.A.
Father Saturnino Urios University
Butuan City, Philippines
jphlescobia@gmail.com
Abstract
Inademocraticstate,theruleoflawprevailsovertheruleof man. The preponderance of the law means that no one is above it and the law is the legitimate basis for exercising power. The state of exception is however an anomic space that paves the way for the Sovereign in this case the executive to decide on his own discretion on how torestore the normal situation. In this case, the law is suspended and power is concentrated now on a single person. The paper which draws upon the thoughts of Giorgio Agamben asserts thattheexceptionhasbecometheparadigmthatdemocratic states employ even during the absence of emergency. This manifestsontheexecutiveencroachmentoverthepowersof legislative and judiciary that dismantle the separation of powers.Executive rulehas becomethenorm fordemocracy. To give flesh to Agamben’s contention, the paper would zoom in the history of the Philippines to show how democracy in the country throughout the years has been simplydilutedbyexecutivedictatorship.
Keywords: Agamben,Anomie,Post-Marcos,Democracy
©2015JoharelEscobia,M.A.
eISSN: 2546-1885
Introduction
Theruleoflawisthehallmarkofeverydemocraticstate. The law ideally safeguards the liberty and rights of the citizens to ensure fairness and equality, and it ensures that government authorities would exercise their power legitimately. This is what delineates democratic states from totalitarian regimes where power is only concentrated on a singlepersonwhobecomesthelawhimself.
The state of exception, however, shows that there are timesinwhichtheruleoflawissuspendedandpower shifts eventually to a single person, the president. The suspension is declared when an imminent danger instigated by sedition orrebellionthreatensthestabilityandorderofthestate.The lawissilentinthemidstofanescalatinginsurgenceanddoes not provide the concrete and necessary steps on how to restorenormalcy.Inthiscase,thepresidenttakesoverandis given the power and duty to do what it takes the save the statefromanarchy.However,oncethenormalstateofaffairs isrestored,theoriginalseparationofpowersisagainupheld, andtheconstitutionbecomesagainthebasisoftheexecutive forexercisingitspowerandforfulfillingitsmandate.
DrawingupontheItalianphilosopherGiorgioAgamben, the paper asserts that democracy which is founded on the rule of law is also founded on anomie or lawlessness which shows in the executive’s proclivity to usurp power over the legislature and judiciary even when there is no emergency. The paper argues that the Philippines shares the same predicamentevenwhenitclaimstobeademocraticcountry.
The paper is structured into three parts: the first part will discuss the crucial link between law and exception. It will draw out thoughts from Carl Schmitt a German Jurist which Agamben criticized to assert the permanency of the state of exception.ThesecondpartwilldiscussonAgamben’sideaon the anomic character of exception and the anomie that
JoharelEscobia,M.A. 40characterized contemporary democracy. The discussion includes a brief historical justification of this phenomenon. The third part will trace how the paradigm of the state of exceptionisinvokedbythePhilippinepresidentsthroughout the years even after toppling the Marcos dictatorship which attests to the fact that democracy in the Philippines has not totally broken the fetters of dictatorship it once vehemently fought.Theparadigmstillreigns.
Legality and Exception
In Legality and Legitimacy, Schmitt asserts that in a parliamentary system, laws are norms enacted by a legislative body. Laws are not simply ordinary orders or measures that regulate the conduct or the behaviour of people since laws are binding and tied with the state’s mechanisms of deterrence and punishment. Laws then for Schmitt must be distinguished from other norms in society thatarenotaproductoflegislationsuchasetiquette,orders, measures and the observance of custom prevailing within a particular society.1 Customs after all for instance vary from culturetoculture,andeachcountryhasawayofintegrating the custom into the life of the community without it having deliberated in the legislative body for approval. It is already implicit in the practices of the community though some of them may already be codified and reflected in the laws of that country itself. Same can be said about etiquette which prescribes norms for what is socially acceptable and unacceptable.Aviolationofgoodmannerssuchasnotsaying thankyouwhenreceivingafavourdoesnotconstitutealegal liabilityandsosetsitapartfromlegalnorms.
For Schmitt, the parliament which in most European countries is the legislative body that craft laws does its function in the name of the collective will of the people it
1Kirk Wetters, “The Rule of Norm and the Political Theology of Real Life in Carl Schmitt and Giorgio Agamben”, in Diacritics,vol.36,nos.12(2006),31.
41 AgambenontheNormalcyofAnomie…
embodies.Theparliamentinthisregardisnotbeseenasthe rule of the people that composed them since by virtue of its functionandthepeopleitrepresents,itisthevalidnormsor laws that have been established that would ultimately guide them and to which state officials must eventually conform2 . AsSchmittsays,
Theruleoflawprevailsratherthantherule by men, authorities or superiors. And even more precisely: The laws do not rule, but are only valid as norms. Domination and sheer power do not exist at all anymore. Whoever exercises power and domination actsbasedonlaworinthenameoflaw.He does nothing but enforce a valid norm in accordancewithhisownresponsibilities.3
In this regard, the constitution which is the supreme law of the state and which provides the basis for legitimate exercise of power is vital for the healthy functioningofdemocracyinasociety.Toguaranteethe observanceoftheruleoflaw,theseparationofpowers is established. The three branches of government the executive,legislativeandjudiciaryfulfilsthefunctionof upholding the laws of the land. The executive execute the laws which the legislatures have crafted and deliberated which in turn is interpreted by the judiciary. The three branches of government provide thechecksand balancetoensurethatnooneholdsthe monopolyofpower.
Kirk Wetters points out that in both Schmitt’s works on Legality and Legitimacy and Political Theology, Schmitt, however, recognizes that during emergencies and
2 Carl Schmitt, Legality and Legitimacy. Trans. Jeffrey SetzeirandJohnMcCormick.Durham.(N.C.:DukeUniversityPress, 2004),13.
3 Ibid.,8.
JoharelEscobia,M.A. 42exceptional cases the laws or norms are silent and in themselvescouldnotaddressthesituation.4 Theinabilityof thelegalandconstitutionalsystemduringexceptionalcases wherethereisimminentdangerbroughtaboutbyrebellion or sedition requires an extra legal measure to pacify the situation.Thismeansthatthelawsasnormsaresuspended, and the power shifts now from the constitution to the person who is going to the restore the situation, the sovereign.The sovereign whois under the laws are now in charge through extra-legal means to restore the situation and sothe laws and the legal and the constitutional system could operate once again.5 This is an explicit recognition that“thereisnorulethatisapplicabletochaos.Ordermust be established for juridical order to make sense.”6 The Sovereign steps outside the law in order to guarantee its normalfunction.
In the state of emergency, two manifestations of power of the sovereign are at play: the power to suspend thelawandthepowertodeterminethetimeforsuspension. In the first instance,the power of the sovereign tosuspend the law during emergency and exceptional cases gives him thediscretiontodowhateverittakestorestorethenormal situation. For instance in the suspension of the Writ of Amparo,thesovereignsuspendsthenormalBillofRightsof apersonspecifiedundertheconstitutiontothepointthata person can be arrested even if his guilt or innocence is not
4 Wetters,2006,31.
5 Citing Link, Wetter says that Schmitt’s view could be described as ‘protonormative’ since normality could only be derived from normativity or the legal-prescriptive sphere and hence,duringcases(stateof emergency)when legalnormsdonot apply, it givesway for exemption. ‘It underminesthelegitimacy of prevailing norms.’ See Kirk Wetters, “The Rule of Norm and the Political Theology of Real Life in Carl Schmitt and Giorgio Agamben”,inDiacritics,vol.36,nos.12(2006),31-46.
6 Giorgio Agamben. Homo Sacer: Sovereign Power and Bare Life. Trans. Daniel Heller-Roazen. (Stanford, CA: Stanford UniversityPress,1998),16.
43 AgambenontheNormalcyofAnomie…
established.Thedueprocesswhichisthenormalprocedure giventothepersonbeforeheisconvictedissuspended,and so even an innocent person here can be incarcerated. The sovereignalsohasthepowerinthefirstplacetodetermine that a suspension is needed. Although the constitution specifies certain criteria for declaring a suspension such as imminent danger, the thing is imminent danger is sometimeshardtodetermine,andultimatelyitrestsonthe powerofthesovereigntodeclareit.
For Schmitt, the emergency is an exception that must be lifted when the threat is gone. He points out that under theparliamentarysystemthereisadangerofextendingthe emergency for it would mean dictatorship, and as Schmitt consistently asserts that it is the rule of law and not of personsthatshouldprevail.
Although Schmitt eventually criticized legality as the sole basis for legitimacy in liberal democratic states, he affirms that in the case of exception, law still holds the power even after it is suspended.7 The sovereign upon the declarationofthestateofemergencyisoutsidethejuridical orderbutneverthelessbelongstoitsinceheistheonewho makesthedecision.ForSchmitt,thetopographicalstructure ofthestateofexceptionischaracterizedbyexclusiononthe basis of suspension of law and inclusion by virtue of the decisionofthesovereign.8
Agamben on the Normalcy of Exception
The Italian philosopher Giorgio Agamben criticised Schmitt’s stancethatthe stateof exceptionis still governed
7 Schmitt,2004,9.
8 Giorgio Agamben. The State of Exception - Der Ausnahmezustand. Lecture at European Graduate School, 2003, 3. Transcription by: Anton Pulvirenti. (http://www.egs.edu/faculty/giorgio-agamben/articles/the-stateof-exception/#).
JoharelEscobia,M.A. 44by the juridical order even after the suspension of law. Agamben argues that it is paradoxical to say that the sovereign is simultaneously outside and inside the juridical order for when the sovereign suspends the law, the sovereign is neither outside nor inside the juridical order. The suspension enters the zone of anomie or lawlessness since it is already outside the juridical order.9 What is referred to by Schmitt as force of law upon the declaration of emergency is not law but acts of the sovereign, the executive.10 It is executive power or rule and no longer the law. The law enters into complete anomie upon the declarationofsuspension.Agambenarguesthattheforceof law has no force, and it is executive rule that dominates uponthesuspension.
However, the important theoretical point that Agamben wants to assert here is the permanency of exception.AgambencontendsthatalthoughSchmittisright in pointing out that the state of exception is justified whenever there is a grave threat to national security and order,Schmittwasnotabletoseethe‘normalization’ofthe state of exception. For Schmitt, the state of exception is temporary while the normal state of affairs is not restored. But Agamben following Walter Benjamin’s ‘Theses on the Philosophy of History’, boldly asserts that this time the ‘state of emergency has become the rule.’11 He argues that the state of exception has become normal: the zone of
9 Agamben, Giorgio. The State of Exception - Der Ausnahmezustand. Lecture at European Graduate School, 2003, 3. Transcription by: Anton Pulvirenti. (http://www.egs.edu/faculty/giorgio-agamben/articles/the-stateof-exception/#).
10 This is reminiscent of what Hobbes argues in the Leviathan: the need to secure peace requires an absolute and undivided power. The sovereign must have all discretionary powerssohecouldimmediatelyacttorestorepeaceandmaintain it.SeeThomasHobbes, Leviathan.Ed.C.BMacpherson.(NewYork: Penguin,1968).
11 Agamben1998,9.
45 AgambenontheNormalcyofAnomie… emergency and the zone of normality collapse to the point thattheyhavebecomeidentifiedwithoneanother.12
Inhisworkthe State of Exception,Agambencitesthe historyofnotablecountriessuchasFrance,Switzerlandand theUnitedStatesofAmericatoshowthisveryphenomenon. Agamben argues that when President Poincare for instance issued a decree on August 2, 1914 holding Paris under a state of siege,the activity of the parliament was suspended for 6 months, and although the parliament resumed its normal function on January 1915, many of the laws passed after the resumption simply reinforces again the power of the executive over the legislative.13 This can be seen in the law granting the Poincare government the absolute power to regulate production and food supply. The same thing happenedagainaccordingtohimonJanuary1924whenthe stability of the Franc was threatened, the Poincare governmentaskedagainforfullpowerstoaddressfinancial matters,anditwasgrantedthepowerwith4monthlimitto address the problem despite the objection that it violated the power of the parliament, and thereby violated the separationofpowers.14 Thedelegationoflegislativepower in France did not end, however, with the Poincare government. The Laval government again met strong resistance from the left side led by Leon Blum for issuing 500 decrees which have the status of law to devalue the Franc.The paradox accordingtoAgamben is that when the left catapulted into power, they asked again for the same measures,the same power,toestablishcontrol and impose newtaxes.15 Thedelegationofpowertotheexecutivewhich happens during the state of exception has become the
12 GiorgioAgamben,StateofException.Trans.KevinAttell. (Chicago:UniversityofChicago,2005),12.
13 Ibid.,12.
14 Ibid.,13.
15 Agamben,2005,12.
JoharelEscobia,M.A. 46paradigm that both the left and the right wing have accepted.16
In Switzerland, a non-aligned nation, the Swiss Federal Assembly on August 3, 1914 granted power to the executive to take measures to ensure the security of the country and to ensure its neutrality in the midst of the WorldWars.AccordingtoAgamben,thecaseofSwitzerland is interesting since the Swiss jurists defended the citizens’ objection that the delegation of powers was unconstitutional by asserting that the delegation is rooted itselfintheArticle2oftheconstitution,whichsays,“theaim of the confederation is to ensure the independence of the fatherland against the foreigners and to maintain internal tranquility and order.”17 For Agamben, the exception here wasjustifiednotonthebasisoftheemergencyitselfbuton the provision of the constitution which affirms and safeguards it. This shows for Agamben that the exception can be justified by interpreting some provisions of the constitutionorbyfillingthelacunaewithinit.
Agamben goes on to mention the cases the United StatesofAmericaandItalyonhowexceptionwasextended afterthestate ofwar and anarchy.Duringthe World War I, PresidentWoodrowWilsonoftheUnitedStatesofAmerica, granted the president complete control of the country to address the war and include declarations such as proscribing disloyal acts of fraternizing with the enemies and throwing invectives to the government. In 1933, President Theodore Roosevelt employed again the paradigm of exception and acted like a commander in the battle to address the Great Depression in which major economies of the world faced economic recession. AccordingtoAgamben,the powerwas extended toaddress the outbreak or emergence of World War II. The Bush Administration’s declaration of waging war against the
16 Ibid.
17 Agamben2005,22.
47 AgambenontheNormalcyofAnomie…
terrorists in the aftermath of the September 11 terrorist attack shows again in the contemporary period the use of exceptionasaparadigmintheUS.
TheappealtothestateofemergencyinEuropeandin theUnitedStatesduringthewaranditsaftermathrevealfor Agambenthenormalcyofexception.Schmitt’spositionthat the sovereign takes the power from the legislative is only meanttorestorethenormalorderisforAgambennolonger the case because at the present democratic countries in Europe in Northern America and beyond have witnessed the same practice of the executive encroaching on the powers of the legislative and the judiciary to the point that theessentialseparationofpowershavealreadycollapsed.It showsthatthetheoryofthestateofexceptioninwhichthe sovereign assumes power over legislative and judiciary is notjustapracticecommontooutlawstateswhereadespot rulesandwhoisalsothelaw.InItalyforinstance,Agamben observes that after the sieges that happened in Sicily and otherprovincesandeventoday,ithasbecomeanexecutive ratherthanaparliamentary.18
The delegation of power tothe executive is commonly exercisedbytotalitarianregimesanddemocraticstates.The “antagonistic and functionally connected elements: the norms of law and the lawless or anomic state of exception have been blurred.”19 This is the malady that inflicts contemporary democracy. The president whose function normallydoesnothavetheforceoflawis actingasthelaw himself that eventually circumvents the constitution to whichheissupposedtoanchorhisactionanddecision.The anomic character of executive rule puts democracy under fireanditchallengestheidealsthatdemocracyupholds.
18 Ibid.,18. 19 Ibid.,86.
JoharelEscobia,M.A. 48The Philippines’s Experience of Executive Encroachment
The country has itsshare inthe normalization of the state of exception. President Marcos held the country under Martial law on September 21, 1972 under the Proclamation no. 1081. The Martial Law purportedly was to deter the mounting insurgence from several groups: activists, CPPNPA, MNLF who threatened to topple down the Marcos regime. President Marcos used his emergency powers and became the law himself to deter the uprising. The Martial Laweventuallyledtograveabusesofhumanrights,plunder, grantinghis cronies monopoly,and the incarceration people who opposed his dictatorial regime. This devastated the Philippineeconomyandtrampleddownitsdemocracy.
Propitiously, the dawn of hope for the country longing for liberation emerged with the success of People Power I. When President Corazon Aquino, the widow of the late Benigno Aquino Sr., assumed power in the palace, the country asserts that never again will dictatorship reign. The painfullessonsoftheMartialLawhadalonglastingeffecton people’s consciousness especially on the victims of sheer persecutionandunjustincarceration.
Nonetheless, President Corazon Aquino who gave an order to draft what is now the 1987 constitution to correct the abuses of the Marcos regime was paradoxically still an heir to the dictatorship. Although Cory was able to restore democracy,she was accused of violatingthe constitution for nepotism and for instituting a brand of democracy that revolved around an elite circle that includes businessmen and landlords.20 Prof. Rocamora points out that President Corazon Aquino who was also an illustrious and landed Cojuangco “could not transcend her class interest” and it turned out that she helped lay the breeding ground for the
20 JoelRocamora,“DiscontentinthePhilippines,”in World PolicyJournal,vol.8,no.4,657(1991).
49 AgambenontheNormalcyofAnomie…
corrupt oligarchs.21 President Corazon Aquino’s elite circle who cared only to protect their business interests foiled the enactmentofagrarianreformlaw.Consequently,thefarmers were left fuming over the government’s lack of response to the problem. It turned out that the Corazon Aquino presidency created another form of dictatorship one that is elitist; a subtle dictatorship but nonetheless continues to bedevilPhilippines’sweakdemocracy.
PresidentFidelV.Ramos,whoassumedpowerafterthe endofPresidentAquino’sterm,andwhowasattheforefront of toppling down the Marcos regime, showed the same malady of executive dictatorship. In 1997, President Ramos under the dubious People’s Initiative for Reform Modernization and Action (PIRMA) pushed for Charter change via a signature campaign or people’s initiative. PIRMA which gained 4 million signatures aims to lift the term extension of the president Ramos which would extend president’s term from six years onwards.22 The Supreme Court declared that PIRMAhas nolegal justification; Ramos, however, pursued the plan by convening congress as a constitutional assembly and by asserting that although second term would not be possible, a two year extension would be enough.23 The irony came when the personalities who worked to topple the Marcos dictatorship namely Corazon Aquino, Cardinal Sin and Fidel Ramos himself,Cory AquinoandCardinalSinnowhavejoinedhandsagaininabig prayer rally to stop Ramos’s plan of running for the second term. The rally to deter Ramos’s plot of extending his term
21 Ibid.,658.
22 AlastairDingwall,CharterChange;RamosandAquino,in Rappler, August 15, 2014. http://www.rappler.com/thoughtleaders/66269-charter-change-ramos-aquino. (Accessed August 19,2014).
23 AlastairDingwall,CharterChange;RamosandAquino,in Rappler, August 15, 2014. http://www.rappler.com/thoughtleaders/66269-charter-change-ramos-aquino. (Accessed August 19,2014).
JoharelEscobia,M.A. 50 was symbolic for it was done on September 21, 1997, the commemorationofthedeclarationofMartialLaw.
PresidentRamos’splanfailed,andhewassucceededby President Joseph Estrada whose presidency is marred by corruption that eventually ended his presidency. One of the controversies surrounding Estrada’s presidency was his declarationof thedreaded martial lawwhen he launchedan all-outwaragainsttheMoroIslamicLiberationFront(MILF). The declaration was heavily criticized and eventually the declaration was lifted that restored the normal situation in the conflict-ridden region. President Estrada display of power did not end with the martial law. Indeed even when the war already ended and is not already acting as the commander in chief in the battle, President Estrada still showedhispowerandgraveabuseofdiscretion.
ThisbecameevidentonNovember2000whenPresident Estrada issued two controversial Executive Orders EO 312 and EO 313 which deal on the privatization of coconut levy funds. EO 312 and 313 intend to create coconut industry fundtosupplementthe incomeoffarmers,andthefundwill be taken from Government’s 27 per cent share in the San Miguel Corp stock to help boost the farming industry.24 However, lawyer Mario Ongkingko who represented the farmersappealedtotheSupremeCourttoinvalidatetheEOS since the funds that are taken to support the farmers, the Sagip Niyugan program are public funds. The petitioner argues,
EOs were unconstitutional because they impinged on the COA’s power to audit and examine funds held in trust by the government; the control, management and disposition of
24 Philip Tubeza, “SC Voids 2 Estrada’s EOS to Use Coco Levy Funds” in The Philippine Daily Inquirer. April 21, 2012. (http://newsinfo.inquirer.net/180051/sc-voids-2-estradas-eos-touse-coco-levy-funds).(AccessedAugust28,2014)
51 AgambenontheNormalcyofAnomie…
publicfundswerenowinthehandsoftheprivate sector; the utilization anddisposition of the coco levy funds were beyond the mandated purposes and encroached on the legislative powers of Congress; and since the ownership issue of the levy funds was not yet settled, the EOs were a usurpationofjudicialauthority.25
The SC just favored the petition of the farmers asserting that the coconut levy funds are “prima facie funds”,andPresidentEstradahasusurpedthepowerofthe legislature to allocate public funds.26 The SC also reaffirms the decision of Sandiganbayan which Estrada encroached that the 27 percent share of SMC is owned by the government and should be entrusted to the care of the farmers.
President Gloria Macapagal-Arroyo was catapulted to poweraftertheimpeachmentofPresidentEstrada.Withthe same tone, on February 24, 2006 which coincided with the celebration of the 20th Anniversary of the EDSA People PowerI,PresidentArroyoissuedPP1017declaringastateof emergency.
Now, therefore, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “The President. .. whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,” and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines,tomaintain law and orderthroughout the Philippines,preventor
suppress all forms of lawless violence as well as anyactofinsurrectionorrebellionandtoenforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personallyoruponmydirection;andasprovided in Section 17, Article 12 of the Constitution do herebydeclareaStateofNationalEmergency.27
President Arroyosimply justifiedtheabove declaration by citing the alleged tactical alliance among their political opposition, the NDF-CPP-NPA, and the military coup de tat grouptotoppledownheradministration.28 Thegravethreat and systematic conspiracy made her to declare the emergency.ButonMarch3,2006,exactlyoneweekafterthe declaration of a state of national emergency and when the President had already lifted PP 1017, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that “(1) it encroaches on theemergency powersof Congress; (2)it isa subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly.”
29 In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members assert that PP 1017 and G.O. No. 5 “are unconstitutional because (1) they arrogate untoPresident Arroyothepowertoenactlaws and decrees; (2) their issuance was without factual basis.”30 And in G.R. No. 171489, another petitioners Jose Anselmo I. Cadiz et al arguethatPP1017“goesbeyondthenatureandfunctionofa
27
(http://sc.judiciary.gov.ph/jurisprudence/2006/may2006/G.R.%2 0No.%20171396.htm.)
28
(http://sc.judiciary.gov.ph/jurisprudence/2006/may2006/G.R.%2 0No.%20171396.htm.)
29 Ibid.
30 Ibid.
53 AgambenontheNormalcyofAnomie… proclamation as defined under the Revised Administrative Code.”31
Indeed, the Supreme Court rules that PP 1017 is unconstitutional insofar as it grants President Arroyo “the authority to promulgate “decrees” that eventually undermined the power of the legislature.32 The Supreme Court cites Section 1, Article VI which categorically states that “[t]he legislative power shall be vested in the Congress ofthePhilippineswhichshallconsistofaSenateandaHouse ofRepresentatives.”33 TheCourtassertsthat“neitherMartial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuingdecrees.”34
The Arroyo presidency was marred by multiple charges of graft and corruption and violations of the Constitution. The corruption charges and allegations cascaded to her cabinets and allies who teamed up together to create a culture of corruption and immunity. As to the violation of the Constitution, what stood out was President Arroyo’s appointment of Chief Justice Renato Corona as the new head of the Supreme Court before she left the office. Many criticized Arroyo for the Constitution prohibits midnight appointments especially at the end of the president’s term. One of the renowned framers of the 1987 Constitution,Fr.JoaquinBernas,Sjassertsthattheexecutive privilege and midnight appointments “make the independence of the supreme court suspect.”35 Fr Bernas notes that in 1986 Commissioner ‘Soc’ Rodrigo fought bravely to remove from the president the appointing power
35 Joaquin, Bernas. A Living Constitution: Constitutional Issues Arising During the Troubled Gloria Arroyo Presidency Part II.(QuezonCity:JesuitCommunicationsInc,2010),291.
andrestoretheroleofCommissiononAppointments“forthe appointment of justices of the Supreme Court and the Court of Appeals” arguing that the practice of presidential appointment started from President Marcos where he appointed all the justices of the Supreme Court and should already be abolished, but as Fr. Bernas plaintively writes, Commissioner Rodrigo’s “proposal lost, 8-26.”36 Paradoxically, the framers of the Constitution were still nostalgic of the Marcos dictatorship until now the same paradigm is at place. President Arroyo used the same appointing prerogative allegedly to help her shield from the anticipatedvoluminouscasesthatwouldbefiledagainsther oneshestepsdownfromthepresidency.
President Benigno Simeon Aquino III who assumed power after PGMA’s term was a fierce critic of the former presidentthoughresemblesherinsomeways.Althoughheis resolute in his campaign to dismantle the systemic corruptioninthegovernment,PresidentAquinoisnotorious for encroaching the powers of the legislature and judiciary. In fact, President Aquino started the campaign by using his power and his political machineries to topple down Chief Justice Corona who is seen to occlude his campaign for integrity and transparency. Aquino allegedly used the Pork Barrel to convince congress and senate to vote for the impeachmentofCorona.AquinomobilizedevenhisCabinets totestifyinthesenatetrial,allforthesamegoalofremoving Coronafromoffice,whichheissuccessful.
PresidentAquino’shistoryofviolatingtheConstitution by arrogating power unto himself includes the renowned case of the Development Acceleration Program (DAP). President Aquinoat hisbehestorder themassivetransfer of fundsfromvarioussourcestotheDisbursementAcceleration Program, which the President created in 2011 “without the knowledge and consent of Congress, and the full details of
36 Ibid.,261-262.
55 AgambenontheNormalcyofAnomie… which he has consistently refused or failed to disclose.”37 Aquino has committed a grave abuse of discretion with regardtoDAPasSection25(5),ArticleVIoftheConstitution provides:
No law shall be passed authorizing any transfer of appropriations; however, the President, the PresidentoftheSenate,theSpeakeroftheHouse of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in otheritemsoftheirrespectiveappropriations.38
The Supreme Court eventually dignified the petitions that the DAP is unconstitutional. The SC argues that DAP “violates the principles of checks and balances and the separation of powers that the 1987 Constitution integrates into the budgetary process; and the DAP violates the constitutional prohibitions against the transfer of appropriations and against the transfer of funds from one branch of the government to another, both under Section 25(5)ofArticleVIoftheConstitution.”39
The restive Aquino, however, went on to attack the Supreme Court in many of his speeches for deciding against the constitutionality of the DAP. The attack has political
37 Kit Tatad, ‘Impeach Aquino Now!’ in Manila Standard Today.
(http://manilastandardtoday.com/mobile/2014/04/21/exclusive105/.).(AccessedAugust27,2014)
38
(sc.judiciary.gov.ph/jurisprudence/2014/july2014/209287_brion)
39
(sc.judiciary.gov.ph/jurisprudence/2014/july2014/209287_brion)
overtones for Aquino appointed the new Chief Justice Maria Lourdes Serenowith the hope that the SCwill be an ally for good governance. With two years left in the office, Aquino seems not to wane in his battle against the two equal branches of government should they not cooperate on what hethinkspersonallyisrightandjustforthenation.
The history of the nation after the post dictatorial era shows that Marcos’s head has not totally been cut off. The tendency of the executive to usurp powers over the two equal and separate branches of government show that even in the Philippines, the normalcy of the exception is at work, democracyremainsadreamfortheFilipinopeople.
Conclusion
Democracy thrives under the rule of law. Legality serves as the canon for a legitimate exercise of powers for government authoritieswhohave themandatetoprotect its citizens and to ensure the overall welfare of the state. The separation of powers exists precisely to ensure that the constitution is upheld and no single person or branch of government holds the monopoly of power. This is what separatesdictatorshipfromdemocracy.
The state ofexceptionwhichis invoked duringcasesin which the state faces an imminent danger that seriously threatenthe stability ofthe stateshowsthe limitation ofthe law as a basis for democratic exercise of power. The paper has argued following the ruminations of Giorgio Agamben that the state of exception is a suspension of the whole juridical order and so exception is characterized by anomie orlawlessnesssinceitisundertheself-governingruleofthe sovereign which in this case is the executive. Contrary to Schmitt’spositionthattheexceptionisstillanexerciseofthe law,Agambenarguedthatitisoutsidethelaw.
However, the very bone of contention here is whether exception is permanent or transient. The paper following
57 AgambenontheNormalcyofAnomie…
Agambenhasassertedthatexceptionhasbecometherule.It has become a paradigm in contemporary democracy. This meansthattheexceptionisnolongerconfinedtoemergency cases such as sedition or serious shortage of basic necessities, it is now the basis for exercising power. For Agamben, the optimism to go back to the original state of affairs fail and it is no longer possible to restore the normal order where law is always the supreme basis for the legitimate exercise of authority. It is now the sovereign, the executive that reigns in contemporary democracy which is evident in the sovereign’s encroachment of powers over the legislative and judiciary. This may appear to be an exaggeration but the history of democratic states across the globe show how democracy at present is diluted by the executive who arrogates power for himself; an executive dictatorshipthathasbecomethenorm.
The Philippines is a prime example. Even after the success of People Power I which toppled down the Marcos dictatorship,thecountryhasnot‘cutofftheheadoftheking.’ From President Corazon Aquino up to her son, the country has not genuinely progressed. They still showed the same breedoftyranny.Theyfoughtfordemocracyonlytosubvert it is evident in the current administration’s obstinacy to insist its agenda even when it encroaches the power of the judiciary. The president’s explicit gestures of attacking the SupremeCourtshowthatultimatelyitisthepresidentwhois powerful and he wields power over the judiciary and the legislative, many of whom are his allies. The normalcy of exceptioninthePhilippinescertainlywouldnotendwiththe Aquino presidency, succeeding presidents will always find the way to assert its power for the executive is no doubt powerful. Anomie which comes during the state of emergency is no longer restricted to it. It has become as Agambenwouldputittheparadigm.
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